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Duplessis v. U.S. Bank National Association

United States District Court, D. Massachusetts

October 9, 2018

JEAN DUPLESSIS, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCATION and SELECT PORTFOLIO SERVICING, INC., Defendants.

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff Jean Duplessis (“Duplessis”) brings claims against U.S. Bank National Association as Trustee for certificate holders of Bear Stearns Asset Backed Securities I LLC Asset Backed Certification, Series 2005-AC6 (“U.S. Bank”) and Select Portfolio Servicing, Inc. (“SPS”) (collectively, “the Defendants”). D. 1; D. 13 at 1. The Defendants move to dismiss all of the claims asserted by Duplessis. D. 13. For the following reasons, the Court ALLOWS the Defendants' motion, D. 13.

         II. Standard of Review

         “To survive a motion to dismiss, ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Boroian v. Mueller, 616 F.3d 60, 64 (1st Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (quoting Iqbal 556 U.S. at 678). In evaluating a motion to dismiss, the court may consider not only the complaint but also “documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013) (quoting Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011)).

         III. Factual Background

         The following factual summary is based upon the allegations in the complaint, D. 1, which are accepted as true for the consideration of the motion to dismiss, and associated documents incorporated by reference into the complaint. Duplessis, along with his spouse, Virginia Duplessis (“Virginia”), purchased a property at 601 River Street, Mattapan, Massachusetts (“the Property”) in 2005 and executed a mortgage in favor of the Mortgage Electronic Registration System (“MERS”) as nominee for Entrust Mortgage Inc. (“Entrust”) and Virginia executed a note in favor of Entrust. D. 2-3 at 1; D. 1 ¶ 2; D. 2-1 at 6-9. The mortgage agreement here states that “Borrower understands and agrees that . . . MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the property.” D. 2-3 at 3. The maturity date on the note was July 1, 2020. D. 2-3 at 2. The Property was purchased as an investment property and Jean Duplessis now resides in Randolph, Massachusetts. D. 1 ¶¶ 1, 13.

         On July 14, 2006, MERS executed an assignment of the mortgage to U.S. Bank National Association, as Trustee for Certificate holders of Bear Stearns Asset Backed Securities 1 LLC Asset Backed Certificates, Series 2005-AC6. D. 1 ¶ 25; D. 2-1 at 4. Duplessis and Virginia fell into default on the loan. D. 1 ¶ 15. Duplessis and Virginia filed for bankruptcy and received a discharge under Chapter 7 of the U.S. Bankruptcy Code on December 10, 2008, which extinguished their personal obligation under the note. D. 1 ¶ 16. In 2009, Duplessis and Virginia separated. D. 1 ¶ 17. Also in 2009, Duplessis received a notice from EMC Mortgage Corporation (“EMC”), then the servicer of the mortgage, requesting that Duplessis contact EMC to discuss options regarding reinstating or modifying the mortgage. D. 1 ¶¶ 12, 18. EMC refused to discuss the matter with Duplessis without the participation of Virginia. D. 1 ¶ 20. In 2010, EMC began a foreclosure action but did not consummate it. D. 1 ¶¶ 21, 22. In 2013, notice was mailed to the Property that servicing rights had been transferred to SPS, but Duplessis did not receive that notice. D. 1 ¶ 24. Duplessis “has no recollection of receiving any written notice of foreclosure, ” as required by Massachusetts law and the terms of the mortgage. D. 1 ¶ 31. U.S. Bank has submitted copies of letters that SPS sent to Virginia at the Property on January 8, 2016 and June 22, 2016, that communicated that the note was in default, stated that “failure to cure the default . . . may result in acceleration of the debt, laid out the “total past due amount, ” stated that “you can still avoid foreclosure by paying the total past due amount before a foreclosure sale takes place, ” and indicated that if such payment is not made, “you may be evicted from your home after a foreclosure sale.” D. 8-3 at 3-5; D. 8-4 at 3-5. [1]

         On January 12, 2018, Duplessis received a notice from U.S. Bank notifying him of a planned foreclosure sale to be conducted on February 9, 2018. D. 1 ¶ 54. That notice stated that Duplessis “may be liable to [U.S. Bank] in case of a deficiency in the proceeds of the foreclosure sale.” D. 2-1 at 1. The notice was titled “Notice of Intent to Foreclosure Mortgage and Intent to Pursue Deficiency After Foreclosure of Mortgage.” D. 2-1 at 1. The notice was mailed to Duplessis' current Randolph address. D. 2-1 at 1; D. 1 ¶ 1.

         IV. Procedural History

         On February 5, 2018, Duplessis filed this lawsuit against U.S. Bank and SPS, D. 1, and moved for a temporary restraining order to enjoin the pending foreclosure of the Property, D. 2, which the Court denied after a hearing, D. 10. On March 14, 2018, the Defendants moved to dismiss the complaint. D. 13. The Court has now also held a hearing on the Defendants' pending motion to dismiss and took the matter under advisement. D. 21.

         V. Discussion

         A. Count I: Wrongful Foreclosure

         Duplessis asserts a claim for wrongful foreclosure against SPS and U.S. Bank, contending that U.S. Bank was not entitled to foreclose for three reasons: first, that MERS did not have the authority to assign the mortgage to U.S. Bank because it only held the mortgage as nominee and that the mortgage assignment is therefore void, D. 1 ¶¶ 26-30; second, that the chain of title to the mortgage is not complete because Bear Stearns (the depositor, or the entity that created the trust for which U.S. Bank is the ...


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